MATTHEW BABEU v. YALE INDUSTRIAL TRUCKS, et al.

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4148-03T54148-03T5

MATTHEW BABEU,

Plaintiff-Appellant/

Cross-Respondent,

v.

YALE INDUSTRIAL TRUCKS and NACCO MATERIALS

HANDLING GROUP,

Defendants-Respondents/

Cross-Appellants,

and

ECOLAB INC.,

Defendant-Respondent/

Cross-Respondent.

_______________________________________

 

Argued: December 6, 2005 - Decided September 19, 2006

Before Judges Kestin and Lefelt.

On appeal from the Superior Court of New Jersey, Law Division, Civil Part, Middlesex County, L-9775-00.

Vincent Jesuele argued the cause for appellant/cross-respondent Babeu (Kessler, DiGiovanni & Jesuele, attorneys; Mr. Jesuele, on the brief).

David J. Novack argued the cause for respondents/cross-appellants Yale and NACCO (Budd Larner, attorneys; Mr. Novack, Sonya M. Longo and Margaret Geisst, on the brief).

Richard G. Morgan (Bowman and Brooke), of the Minnesota bar, admitted pro hac vice, argued the cause for respondent/cross-respondent Ecolab (Dobis, Russell & Peterson and Mr. Morgan, attorneys; James S. Dobis, Mr. Morgan, John D. Sear and Alana K. Bassin, on the brief).

PER CURIAM

Plaintiff, Matthew Babeu, appeals from a judgment in favor of defendant Yale Industrial Products (incorrectly pleaded as Yale Industrial Trucks) and its successor NACCO Materials Handling Group, Inc. (NAACO), based upon a jury finding that plaintiff had not proved a product defect. Plaintiff also appeals from an earlier order granting a summary judgment dismissal to defendant Ecolab Inc. (Ecolab), and from a post-trial order denying plaintiff's motion to recall and interview the jurors. NAACO cross-appeals, asserting several errors on the trial court's part. We affirm.

In his argument challenging the dismissal of his product liability claim, plaintiff contends that the trial court's instructions to the jury failed to convey an accurate understanding of the parties' respective burdens of proof, i.e., that while plaintiff bore the burden of proving a product defect, including non-conformance with feasible technology, see Cavanaugh v. Skil Corp., 164 N.J. 1, 4 (2000), defendant manufacturer bore the burden of proving "the technological 'state-of-the-art' at the time the product left its control." Ibid. Plaintiff argues that, because of the trial court's omissive error regarding defendant's burden, "it is impossible to know whether [the jury's] conclusion was based upon the erroneous finding that plaintiff had not disproved the 'state-of-the-art' defense or whether that finding was based upon a failure of plaintiff to prove a defect."

Our examination of the record discloses that there was no true "state of the art" defense in this matter. The primary focus of the entire trial was on whether plaintiff had proved a product defect. Thus, the trial court properly rejected plaintiff's request that the court should instruct the jury on a "state of the art" defense. The court provided the jury with a proper focus on the issues raised by the evidence; and the jury's evaluation that plaintiff had not met his burden of proof is adequately supported by the record and, therefore, cannot be gainsaid. See Carrino v. Novotny, 78 N.J. 355, 360-61 (1979); Baxter v. Fairmont Food Co., 74 N.J. 588, 596-601 (1977). Moreover, plaintiff's request during the charging conference that the court's instructions include a "state of the art" element was distinctly equivocal; and plaintiff failed to lodge an objection to the court's proposed charge presented the next day before it was delivered to the jury.

Accordingly, we have evaluated this argument by plain error standards. See R. 1:7-2; R. 2:10-2. We discern no likelihood that the instructions the jury received resulted in any misunderstanding or confusion in evaluating the proofs as submitted. See Board of Ed. of the City of Asbury Park v. Hoek, 38 N.J. 213, 228 (1962); Crego v. Carp, 295 N.J. Super. 565, 573 (App. Div. 1996), certif. denied, 149 N.J. 34 (1997). See also Sons of Thunder, Inc. v. Borden, Inc., 148 N.J. 396, 418 (1997); Fisch v. Bellshot, 135 N.J. 374, 391-92 (1994).

With respect to the jury-taint issue raised by plaintiff, we are in substantial agreement with Judge Pincus's rationale, expressed on the record on April 16, 2004, in resolving the issue on temporary remand from this court.

Defendant NAACO, as it has previously, joins plaintiff in the remaining issue raised in plaintiff's appeal: that the trial court erred in a summary judgment ruling at an early stage dismissing the complaint against defendant Ecolab Inc. on the basis of the workers' compensation bar, see N.J.S.A. 34:15-8, because Ecolab was a special employer under the dual employment doctrine. In reviewing a summary judgment ruling, we apply the same standards that govern the trial courts, i.e., whether a genuine issue of material fact existed and, if not, whether the party who prevailed was entitled to judgment as a matter of law. See Prudential Prop. & Cas. Ins. Co. v. Boylan, 307 N.J. Super. 162, 167 (App. Div. 1998). See also R. 4:46-2.

Based upon our review of the record in the light of the written and oral arguments advanced by the parties and prevailing legal standards, we are in substantial agreement with Judge Longhi's expressed rationale for applying the workers' compensation bar and dismissing the claim against Ecolab Inc. See Kelly v. Geriatric and Medical Services, Inc. 287 N.J. Super. 567 (App. Div.), aff'd o.b., 147 N.J. 42 (1996); Antheunisse v. Tiffany & Co., Inc., 229 N.J. Super. 399 (App. Div. 1998), certif. denied, 115 N.J. 59 (1989).

We discern no error, either, in Judge Longhi's determination that the record presented no genuine dispute of material fact. Plaintiff had worked at Ecolab's warehouse. His application for direct employment by Ecolab had been rejected, but, on Ecolab's recommendation, he then applied to the Pomerantz agency, an employment agency Ecolab used frequently to provide staff for its warehouse operations. Plaintiff was hired by Pomerantz and was placed at the Ecolab warehouse, where he was assigned, following a training period, to operate a forklift. He sustained extensive and grave injuries in an incident stemming from operation of the forklift. Judge Longhi's use of the five-factor test of Kelly, supra, 287 N.J. Super. at 571-72, in evaluating the situation at hand and in isolating and applying the standards that governed, was free of error.

Having determined to affirm in respect of the issues raised in plaintiff's appeal, we dismiss the cross-appeal as moot.

The judgment of the trial court is affirmed.

 

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A-4148-03T5

September 19, 2006